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Jun 272011

In Brown v. Entertainment Merchants Assn. the Supreme Court ruled that video games are protected by free speech.  In this 7-2 ruling the Court rejected the idea that video games qualify for special regulation because of their interactive nature, calling it “unprecedented and mistaken.”  It continued:

Comments and link to full transcript after the jump.

This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive.

Furthermore, the Court found that the industry’s current voluntary rating system already provides sufficient guidelines and restrictions to keep age-inappropriate games out of children’s hands.  The level of non-compliance by retailers and the evidence supporting the theory that video games deserved special classification was not enough to persuade the Supreme Court to make changes in the Constitution.

California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who dis-approve of their doing so. The Act cannot satisfy strict scrutiny.

The only other government regulation of free speech as directed towards children is one for pornography.

The real world application for this ruling is that retailers will not have to fear criminal prosecution for the sale of violent video games to children.  The prosecution’s definition of violent video games was sufficiently broad that many feared that retailers would simply stop selling games with an M rating, or that developers would start restricting the level of violence in new games.

Justices Stephen Breyer and Clarence Thomas dissented.

Read the full ruling here.

  8 Responses to “Supreme Court: Video Games are Protected by First Amendment”

  1. Very interesting article, I love to follow US politics! Here in Germany retailers are not allowed to sell M rated games (or other content like films etc.) to children. They still sell them to adults but there are plenty of big games that were redone and got restricted in terms of violence in the german version to avoid a M rating here. There are complaints about that from time to time, but I really doubt you could see a ruling like this one here in my lifetime – and I dont think I personally would want one.

    But then… I also pay tax rates that would be called socialistic in the USA 😉 .

  2. This is heavy legal-ese here, but the argument isn’t really whether retailers should be allowed to sell violent video games to children. Retailers themselves would not even make that argument, I don’t think. They are responsible enough and worried enough about community backlash, for the most part, to self-monitor and self-impose restrictions. Hence, the ESRB ratings system, put in place by the game industry itself.

    The original argument brought before the California courts was that despite these restrictions already in place, the problem is rampant enough that it behooves us as Americans to amend the Constitution and then start fining retailers. The Supreme Court told California that their case was not backed up by sufficient evidence that this was a big enough problem to take such drastic measures.

    The video game industry does the best job of keeping age-inappropriate media out of the hands of children. It’s far easier to sneak into an R-rated movie, get a music CD with adult lyrics, or buy an R-rated DvD, according to an undercover shopper survey done by the Federal Trade Commission (http://www.industrygamers.com/news/games-have-most-vigorous-enforcement-of-ratings-find-ftc/).

    Society loves to use video games as a whipping boy. I’m glad to see the Supreme Court saw through that myth.

  3. Well, games are blamed as the source of all evil here as well. Now that I think of it… if TOR becomes a really big success like WoW, I can allmost hear the voices, that now cry out against WoW and Counter Strike, dooming TOR for having a morality system that kind of rewards even the darkest choices.

    Anyways, thanks for the clarifications and further input 🙂 .

  4. Haha too true! Seriously, I mightI have a bigger problem with rewarding kids for being mean to people than I do with them chopping people’s heads off. 😀

  5. all i have to say is… Thank you (insert random deity here)!!
    The studies for the direct relationship between video games and violence in kids has been inconclusive. Plus it isn’t the government’s job to parent our kids. It is ours. If you don’t want your kids to play violent games, or watch violent movies then don’t buy them for them. We have a rating system, maybe parents should actually learn it. The truth is however, that if we force prevent our kids from doing these things then they are going to do them behind our backs. We all know this. Kids want to do what their parent don’t want them to. It’s a stereotype for a reason. If we as parent just monitor our kids intake of such things and have some participation in their lives and their interests things we wouldn’t have to worry about the things they do when we aren’t looking.

    If the movie industry (based in California) can get away with filming what they want, Music industry (also with a strong presence in Cali) can record what they want, and do this with just a ratings system, why can’t the gaming industry?

  6. Well this is a nice victory today for gaming, although it is not unexpected.

    These kind of allegations are insane, as any good parent who actually felt that video games were harming the development of their children would simply not allow them to play those games in the first place.

    To think that people would try to change the first Amendment instead of parent their children better is one of the craziest arguments I have ever heard.

  7. Nice ruling!

    When did you gals turn on the comment system for stories? I guess iv been on vacation to long or something.

  8. We turned on the Comments fairly recently. It seems that some people find it a bit easier to respond directly on the site. We like to do what we can to encourage communication with everyone because this community is pretty fantastic. 🙂

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